Module Reviews: Public Law Part 6
- Legal Side
- Feb 28, 2021
- 4 min read
DISCLAIMER: all information in these module reviews are taken from our own notes and research so please do not cite this in your work. This summary also includes notes from my course provided textbook, 'Constitutional and Administrative Law' by Roger Masterman and Colin Murray.
Welcome to the fourth instalment of our Module Reviews!
In January leading into February, the focus will be on Public Law. For today's review, the topic featured is devolution. I would like to note that this review only focuses on devolution to Scotland, Wales and Northern Ireland. There are aspects of devotion to Greater London and local authorities, however this is not the focus of this article.
The Basics
Devolution is the decentralisation of government power. In the UK, this means that various powers are granted to the various devolved administrations. These institutions are the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly.
Devolution in the UK is asymmetrical. This means that the devolution arrangements across Scotland, Wales and Northern Ireland are not the same as each other. For example, Scotland has considerably more powers granted to it than Wales. It is important to note however that the UK Parliament does still reserve some powers which are not granted to devolved arrangments.
Devolution arrangments in the UK also carry with them a very rich history, especially in Scotland and Northern Ireland. I would encourage you to look at the timelines in this review of each devolution arrangement and ask yourself how each chain of events has led to the devolution arrangments we see today.
Scotland
The devolved administration in Scotland is the Scottish Parliament. Established under the Scotland Act 1998, its electoral system works on a first past the post, part regional list system. There are 129 Members of the Scottish Parliament.
Some examples of the powers that are devolved to Scotland include education and training, housing and agriculture. There are also powers that are reserved matters for the UK government, however. These include foreign policy, broadcasting and immigration.
In relation to the certain devolved powers of the Scottish Parliament, there is an important convention to note that was set out during debates on the 1998 Scotland Bill. The Sewel Convention advances then when the UK government wants to legislate on areas of devolved competence, it will not do so without the devolved institution having passed a legislative consent motion. This is a relevant convention to all devolved administrations in the UK, however is mentioned in statute for Scotland in s28(8) of the Scotland Act 1998.
‘The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law’ - the majority in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5.
Important Dates for Scotland
1979: Scottish devolution referendum on whether there should be a Scottish Assembly (40 per cent of the electorate had to vote yes in the referendum, although a small majority voted yes this was short of the 40 per cent threshold required to enact devolution).
1997: Scottish devolution referendums on whether there should be a Scottish Parliament and whether the Scottish Parliament should have tax varying powers (both referendums received a yes vote).
1998: Scotland Act.
2014: Referendum on whether Scotland should become an independent country (no, the electorate voted 55 per cent to 45 per cent in favour of Scotland remaining within the UK.)
2016: Scotland Act.
Thinking point: what do you think the presence of so many Scottish referendums and their results says about the future of Scotland and its relationship with the rest of the UK, especially in light of the results of the Brexit referendum?
Some Case Law to Look At
Whaley v Lord Advocate
Martin v Lord Advocate
Imperial Tobacco Ltd v Lord Advocate
Scottish Whisky Association v Lord Advocate
Fraser v HMA
Wales
The devolved administration in Wales is the Welsh Assembly. Its electoral system is first past the post for constituencies and second party votes for regions. There are 60 Assembly Members, with each person being represented by five members (one local and four regional).
The Welsh Assembly, while not having as much devolved power as Scotland, now has considerably more devolved powers than it initially did. In 1998, there was a very minimalist approach, with only 18 areas devolved for secondary legislation. The result of a referendum in 2011 asking 'Do you want the Assembly to be able to make laws on all matters in the 20 subject areas it has powers for?' means that the Welsh Assembly now has powers enabling it to make laws in all 20 areas devolved to Wales.
Important Dates for Wales
1998: Government of Wales Act 1998
2006: Government of Wales Act
2017: Wales Act 2006.
Northern Ireland
Devolution has been turbulent in Northern Ireland to say the least. The history of Northern Ireland has been important to this, however there is too much history to fit into this small module review. If you would like a more detailed look at the history of the Northern Ireland Assembly, please see this page here.
The system used for Northern Irish devolution, established under the Good Friday Agreement, is one which takes into account the political history of Northern Ireland. It is a power-sharing arrangement between the unionist and nationalists. The system is quite complicated, but the article I have mentioned in the paragraph above gives a great explanation as to how the system works.
The devolution settlement in Northern Ireland is, “inextricably linked to the divisive issues which precipitated its inception and characterise its operation in practice”. - Colin Knox, 2010.
Important Dates for Northern Ireland
1921- 1972: Devolution in Northern Ireland.
1972: Northern Ireland (Temporary Provisions) Act brought the direct rule back under Westminster
1973: Northern Ireland sovereignty referendum on whether Northern Ireland should remain part of the United Kingdom or join the Republic of Ireland (yes to remaining part of the UK).
1998: Belfast Agreement / Good Friday Agreement.
1998: Northern Ireland Act.
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